[J-92-98]THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,Appellee

v.

DAVID CHMIEL,Appellant

:::::::::

162 Capital Appeal Docket

Appeal from the Judgment of Sentenceentered on March 14, 1995 in the Court ofCommon Pleas of Lackawanna County at83-CR-748

ARGUED : April 27, 1998

OPINION

MR. JUSTICE SAYLOR DECIDED: AUGUST 19, 1999

Among the numerous issues raised in this appeal is the following: Did the trial

court err in allowing the Commonwealth to introduce into the record of Appellant David

Chmiel’s second trial portions of the testimony given at an ineffectiveness hearing by

Thomas Kennedy, Esq. (now deceased), counsel for Chmiel at his first trial? We

conclude that the admission of such testimony was error and therefore reverse.

I. Background

David Chmiel was charged with stabbing to death three elderly siblings,

Angelina, Victor, and James Lunario, while robbing their home in Throop, Lackawanna

County, in the early morning hours of September 21, 1983. In 1984, a jury convicted

Chmiel of three counts of murder in the first degree and sentenced him to death. This

Court reversed the convictions after finding that trial counsel (Attorney Kennedy) had

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been ineffective. Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Chmiel

was retried in 1995. As before, he was convicted of three counts of first degree murder

and sentenced to death. This direct appeal from that judgment of sentence followed.

The principal Commonwealth witness against David Chmiel at both the first and

second trials was his brother, Martin Chmiel. According to Martin, David told him late in

the summer of 1983 that he needed to obtain money quickly; he (Martin) told David that

the Lunarios kept large sums of money in their home; and he and David then decided to

break into the Lunarios’ home in order to steal the money. While admitting that he

participated in the planning of the break-in to the extent of fashioning ski masks for

himself and David from the sleeves of an old sweater, Martin asserted that he

subsequently changed his mind and had nothing further to do with the scheme. Martin

testified that David confessed to him shortly after the murders that he had stabbed the

Lunarios to death and stolen $5,300.00 from their home.

After the jury’s verdict in the first trial, David Chmiel filed counseled post-trial

motions as well as a pro se petition alleging that Attorney Kennedy had been ineffective

for, inter alia, making no effort to locate alibi witnesses, discouraging him from taking

the stand, and failing to request an accomplice instruction as to Martin Chmiel’s

testimony. The trial court appointed new counsel, stayed the post-trial motions, and

held an evidentiary hearing (treated as a hearing pursuant to the then-effective Post

Conviction Hearing Act, 42 Pa.C.S. §§9541-9551) on the ineffectiveness claims.

Following the hearing, at which Attorney Kennedy testified, the trial court denied David

Chmiel’s post-trial motions and formally imposed the sentence of death.

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On direct appeal, this Court determined that Attorney Kennedy’s failure to

request an accomplice instruction with regard to the testimony of Martin Chmiel

constituted ineffective assistance that prejudiced the defendant. Accordingly, the

judgment of sentence was reversed and the case remanded for a new trial.

Prior to the retrial, David Chmiel (hereinafter “Chmiel”) filed an omnibus motion

requesting, inter alia, that the trial court preclude the use at trial of the testimony given

by Attorney Kennedy at the evidentiary hearing in 1988.1 The basis for the motion was

that such testimony had impermissibly disclosed confidential attorney-client

communications. Opposing the motion, the Commonwealth argued that Attorney

Kennedy’s testimony should be admitted for impeachment purposes in the event that

Chmiel decided to take the stand. The trial court denied Chmiel’s motion to preclude

use of the testimony.

Although he did not testify at his first trial, Chmiel chose to do so at his second.

The crux of his testimony was that circumstances at the time of the killings strongly

suggested to him that his brother Martin had committed the crime. Chmiel testified on

direct examination that he had gone near the Lunarios’ residence on only two

occasions. The first occasion was in late June or early July of 1983, when he and

Martin went there to “case the joint.” The second occasion was early in September of

that year, when he and Martin drove to the residence with the intent of burglarizing it;

however, they abandoned the plan upon discovering that, contrary to their expectation,

someone was at home.

1 This was a motion in limine, although not styled as such. See generallyCommonwealth v. Bazemore, 531 Pa. 582, 584, 614 A.2d 684, 685 (1992).

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Concerning his whereabouts on the night of the murders, Chmiel testified as

follows: After having spent the day doing construction work on the home of Nancy and

Tom Buffton, his sister and brother-in-law, Chmiel arrived home at about 4:30 p.m.

Leaving there, he drove to the residence of Mike Cordaro, an electrical contractor to

whom he owed money, in order to pay him. After paying Cordaro, Chmiel drove to

North End Plumbing Supply to check prices, to a six-pack store to buy lottery tickets,

and then to Betz’s Bar, where he stayed until at least 11:00 p.m. From the bar he went

to the Bufftons’ house to check on tools that had been left there; to the home of a friend,

Pat Battle, with whom he had a few beers; and to his brother Marty’s house, where he

learned from Marty’s wife that Marty was not at home but was with Tom Buffton. After

stopping at a donut shop and a mini-market, Chmiel went home. He went out once

more to buy aspirin for his child. Then, he testified, he returned home to stay at 3:00 or

3:15 a.m.

As promised, the Commonwealth used Attorney Kennedy’s testimony to cross-

examine Chmiel concerning his whereabouts at the time of the murders. Because it is

important to understand the nature of such testimony and the use that was made of it,

we quote at length the pertinent portion of the cross-examination.

Chmiel maintained that he had not been in the vicinity of the Lunario residence

when the murders were committed and that he had “never . . . told anybody anything

different . . . .” The prosecutor then asked:

Q: Well, isn’t it a fact, though, sir, for a period of five months starting witha conference with Mr. Kennedy on October the 5th that you maintainedthat you were on the scene at 1:00 o’clock in the morning and you tried toblame your brother because you said your brother was running from thescene?

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A: Yes.

Chmiel’s positive answer to the prosecutor’s question was apparently a mis-statement

on his part, because immediately thereafter he asserted that he had gone to the Lunario

residence only on the two occasions mentioned earlier. Cross-examination continued

as follows:

Q: Now tell me this, sir: Why for five months did you lie to Mr. Kennedyand say that you were on the scene of the crime at 1:00 o’clock in themorning on the 21st of September, that you saw Marty running out and youwere going to blame Marty. And you said, Hey, Marty, and he got in theToyota and drove away. Why did you lie to Mr. Kennedy and give thatphony story?

A: I did not lie to Mr. Kennedy. I never told him that.

. . .

Q: At [the evidentiary hearing] did you hear Mr. Kennedy testify as follows. . . . He’s talking about different versions that you gave him. Do youremember him saying that you gave him three different versions of whathappened? Do you remember him saying that?

A: Yes, I remember him saying that.

Q: Do you remember him saying, “The first version [given by Chmiel] ofwhat had happened . . . on the night of September the 21st . . . included anadmission by him that he was at the scene of the murder not for thepurpose of robbing or killing but was there to case the joint. At that timethe notes indicate that he saw a shadow, that he perceived it to be, atleast he thought it to be his brother Marty, and that he called out, ‘Marty’,that the shadow ran down an alley of the Lunario house which he wascasing, got into . . . a car that Dave said he thought belonged to TomBuffton. And [he gave] a description, I think it was a Toyota, a brownToyota owned by Thomas Buffton.” . . . Now do you recall Mr. Kennedytestifying that way under oath?

A: Yes, sir, I do.

Q: He said that, didn’t he?

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A: Yes, sir, he said that at a hearing that I was questioning hisineffectiveness.

Q: So he lied is what you’re saying?

A: I’m saying--I can’t say he’s lying. I’m saying I did not tell him that.

Q: In other words he just made this up?

A: Well, I don’t know what he did. It’s not what I told him.

Q: It’s not what you told him; he just made it up. Isn’t it a fact, sir, that hetestified that you said to him . . . he was ineffective because you wanted totestify to certain things and he said, he advised you not to go along with itbecause he did not want to be a party to perjury since you had given himthree different stories. Do you remember him testifying that way?

A: He did say that at the ineffectiveness hearing, yes.

. . .

Q: He said that he didn’t want you to get up and lie and he would not be apart of it?

A: He said that was one of the reasons he did not put me on the stand,that’s right.

. . .

Q: And didn’t he say, also, that you maintained that position for fivemonths, isn’t that what he said?

A: He may have said that; that’s probably what he said. I don’t recall if hesaid five months, but he did say there was another version given later orsomething like that.

Q: There were two other versions given?

A: Yes, I think he said three.

Q: Three. As a matter of fact the version . . . that you testified toyesterday is Version No. 2?

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A: No, that’s version [sic] from the very beginning; that’s version No. 1.

Q: According to Mr. Kennedy’s sworn testimony, what you had given himis Version No. 2?

. . .

A: Yes. That was at a hearing where I was questioning his effectivenessand his professionalism, and that’s what he said, yes.

Q: Well, you were questioning his professionalism because he advisedyou not to get up on the stand and lie because you told him three differentstories. That’s what he said, right?

A: That’s what he said--

Q: You wanted to get up on the stand and lie and he didn’t want you to dothat?

. . .

A: That’s what Mr. Kennedy said, but that’s not, that is not what I told him.I maintained from the very beginning, before the preliminary hearing to thebail hearing to the, every hearing I went to, right from the beginning, thatthe story I told yesterday, the version I gave yesterday, was the truth fromthe very beginning.

Q: So in other words this is just a pure fabrication? This is something thatMr. Kennedy dreamed up out of his imagination that you were there at1:00 o’clock in the morning on the scene . . . ?

A: I know I did not tell him that.

Q: Okay. Do you recall him saying this . . . . And he’s talking about aconversation that he had with you where he’s questioning you . . . . [“]Nowtell me where you were at that period of time . . . .” This is Mr. Kennedytestifying.

“We started at, I think I asked him to start at 8:00 o’clock in the morning,and minute by minute he told me where he was . . . the whole day until . . .[he] ends up in front of the Lunario house at or around the time the

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murders were being committed. I said, ‘Oh, my God, how do we handlethis?’

“That was changed a couple months later. He suddenly remembered hewas elsewhere, and I’ve got to play the game, you know, I’ve got to getout there and structure an alibi with a witness who keeps changing. It’skind of a tough assignment.” Do you remember Mr. Kennedy testifyingthat way?

A: Yes, vaguely I do, yes.

. . .

Q: So [Mr. Kennedy] swore unequivocally that you told him for a period ofmonths that you were on the murder scene, isn’t that right?

A: That’s what he said at that hearing, yes.

Q: And not only that, but you were trying to blame your brother Marty,isn’t that right?

A: That’s not true.

Q: You were trying to blame your brother Marty by saying, I was there butI was just casing the place and Marty ran away and Marty got into thisToyota, Buffton’s Toyota. So you were trying to put the blame on Marty.

A: No, sir.

Q: It was a lie, wasn’t it?

A: No, sir, it was not a lie.

Q: All three stories were lies, Story No. 1, Story No. 2, and Story No. 3are all lies?

A: There’s only one story.

Q: You told story No. 2 according to Mr. Kennedy?

A: Yes, according to Mr. Kennedy--

. . .

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Q: Now, do you recall that Mr. Kennedy said it wasn’t until February the11th of 1984 that you suddenly said, . . . Whoops, I made a mistake. Iwasn’t there and I can account for all the different times. And I gotwitnesses lined up, right? Five months later you told him that?

A: No, sir.

Q: But that’s what he said?

A: Yes, that’s what he said, yes.

Q: That’s what he said, but he’s a lier [sic]?

A: He is lying. He said it at a hearing where I was questioning hiseffectiveness . . . .

The prosecutor then cross-examined Chmiel concerning the testimony of the

prosecution witnesses, suggesting that “we have a lot of people that seem to be lying

here.” After Chmiel acknowledged that his brother Martin had never told him that he

(Martin) had murdered the Lunarios, the prosecutor returned to the subject of Attorney

Kennedy’s testimony.

Q: Now this was a matter that you discussed with Mr. Kennedy, wasn’t it?

A: That’s correct.

Q: Because at a later date you came up with Story No. 3 where you said,you know what, Mr. Kennedy, you know what I’m going to say now? I’mgoing to turn the tables on Marty. I’m going to say Marty told me he did itand he did it with Buffton and some girl named Judy . . . isn’t that right?

A: No, sir, that’s not right.

. . .

Q: Let me put it to you very simply. You came up with Story No. 1 whichwas: I was on the scene, and you tried to concoct different stories anddifferent lies, deciding what you’re going to tell when you get on the stand.

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Story No. 1 was: I was on the scene at 1:00 o’clock in the morning. I’mgoing to blame Marty because I know that Marty is blaming me, so I’mgoing to say I saw him running away and get in the Toyota. That’s StoryNo. 1.

Five months later you come up with Story No. 2 which is: I was wrongabout that. I wasn’t on the scene, that I was at these other locationsbecause you had time to get people together to put you at other locations,isn’t that right?

A: No, sir.

Q: Then you say that after the preliminary hearing, after Marty testifiedagainst you, then you told him, didn’t you tell him, Well, I’m going to turnthe tables and I’m going to say that Marty told me he did it and he saidthat he and Buffton did it and they did it with a girl named Judy. Isn’t thatwhat you said?

A: No. Marty never told me he did it.

Q: I know that’s what you’re saying now, but that’s Story No. 2 becauseI’m now reaching Story No. 3.

. . .

Q: Now you’re aware that Mr. Kennedy said that you gave him a thirdversion. And the third version was just that, that you claimed that Martytold you he did it. He testified to that under oath, didn’t he?

A: Yes, he did.

Q: And he said that, I don’t know what to do with this man. He’s givingme three different stories. I can’t put him on the stand to lie when he toldme three different things. Isn’t that what he said?

A: Yes, at that time--

Q: Of course he’s a liar. He’s a liar.

A: That’s what he said. I did not tell him three different stories from thevery first day; I told Mr. Kennedy what I remembered happened that nightand what didn’t happen.

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. . .

Q: Okay. Let me refer to page 462 of the notes. The testimony of Mr.Kennedy under oath. Okay. He says several months later you told him,“He knows who did the murders but he won’t say who did it. Naturally atthis point I got a little excited, I pressed him on it. He identified the killersas two men and one woman. My notes indicate who did it. And he nowsays that Marty told him on September the 21st, 1983, the day after thekillings, or the afternoon of that day of the killings, . . . that he, Marty, TomBuffton, and Judy, I’m not sure who Judy was, did it. That Marty Chmiel,this is now coming five months later and it’s a, ‘me, too’ defense. Martysaid Dave did it, and five months later Dave says, Oh, Marty did it. He toldme he did it.” Do you remember him testifying to that?

A: Yes.

Q: So he says that was your Story No. 3, is that right?

A: Yes, that’s what he said, yes.

Q: And do you remember him saying on page 464, “I didn’t know what hewould say on the stand because now I have three versions: A. He wasup there to case the joint; B. He wasn’t up there but Marty--that he wasn’tup there and he was at his friend’s house; and, C. Marty did it.[”] . . . [D]oyou remember him testifying to that?

A: Yes.

. . .

Q: Do you remember him saying this, on page 545, “I had the problem asa lawyer being told by my client what had happened here, and I had theproblem of supporting perjury if I knew he was going to take the stand andtestify as to something that was not true.” Do you remember him sayingthat?

A: Yes.

Chmiel mounts a two-pronged attack upon the Commonwealth’s use of Attorney

Kennedy’s testimony. First, he argues that Attorney Kennedy’s disclosures were

excessive in scope and improper given their procedural context. Second, he contends

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that the trial court abused its discretion in allowing the Commonwealth to utilize Attorney

Kennedy’s testimony at the second trial. As the basis for this claim, Chmiel asserts that

the Commonwealth’s use of Attorney Kennedy’s testimony violated 42 Pa.C.S. §5917,

the codification in the criminal context of the former testimony exception to the hearsay

rule. In addition, he contends that the testimony did not meet the requirements for

admissibility established by this Court in Commonwealth v. Lively, 530 Pa. 464, 610

A.2d 7 (1992). Finally, he asserts that admission of the testimony violated his state and

federal constitutional rights to confront the witnesses against him, to be protected

against compelled self-incrimination, to have the assistance of counsel, and to be

afforded procedural due process.

Questions concerning the admissibility of evidence lie within the sound discretion

of the trial court, and we will not reverse the court’s decision on such a question absent

a clear abuse of discretion. Commonwealth v. Weber, 549 Pa. 430, 436, 701 A.2d 531,

534 (1997). In addition, we will not reach Chmiel’s constitutional issues if the appeal

can be decided on another basis. Commonwealth v. Baker, 547 Pa. 214, 218, 690 A.2d

164, 165 (1997).

II. Prior Counsel’s Disclosure of Confidential Communications

It is undisputed that Chmiel’s conversations with Attorney Kennedy were, and

absent waiver would have continued to be, protected against compelled disclosure by

the attorney-client privilege. Section 5916 of the Judicial Code, 42 Pa.C.S. §5916, sets

forth the privilege as it pertains to criminal matters in Pennsylvania.

In a criminal proceeding counsel shall not be competent or permitted totestify to confidential communications made to him by his client, nor shall

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the client be compelled to disclose the same, unless in either case thisprivilege is waived upon the trial by the client.

42 Pa.C.S. §5916. Although now embodied in statute, the attorney-client privilege is

deeply rooted in the common law. Commonwealth v. Sims, 513 Pa. 366, 373, 521 A.2d

391, 394 (1987); Commonwealth v. Maguigan, 511 Pa. 112, 124, 511 A.2d 1327, 1333

(1986). Indeed, it is the most revered of the common law privileges. Maguigan, 511

Pa. at 124, 511 A.2d at 1333.

Nevertheless, a party who attacks the competence of his or her counsel cannot

rely on the attorney-client privilege to prevent counsel from responding to such attack.

Loutzenhiser v. Doddo, 436 Pa. 512, 519, 260 A.2d 745, 748 (1970); Doll v. Loesel, 288

Pa. 527, 533, 136 A. 796, 798 (1927); Commonwealth v. Warren, 264 Pa. Super. 274,

279 n.6, 399 A.2d 773, 776 n.6 (1979); Commonwealth v. McKenna, 206 Pa. Super.

317, 322, 213 A.2d 223, 226 (1965). In effect, the client’s attack on the competence of

counsel serves as a waiver of the privilege as to the matter at issue.2

2 As amended in 1995, the Post Conviction Relief Act specifically provides that “[w]hen aclaim for relief is based on an allegation of ineffective assistance of counsel as a groundof relief, any privilege concerning counsel’s representation as to that issue isautomatically terminated.” 42 Pa.C.S. §9545(d)(3) (emphasis added). Although thisstatutory provision was not in effect in 1988, when the evidentiary hearing on Chmiel’sineffectiveness claims was held, there was already implicit in the case law the limitationthat a client’s attack on his former counsel’s competence waived the privilege only as tothe matter in dispute. See Doll, 288 Pa. at 533, 136 A. at 798 (finding that attack onattorney’s integrity rendered admissible “at least part” of his testimony despite privilegednature of communications disclosed); Warren, 264 Pa. Super. at 279 n.6, 399 A.2d at776 n.6 (finding that trial court had properly overruled appellant’s objection, based onattorney-client privilege, to introduction at PCHA hearing of letter from appellant toformer attorney, where letter confirmed attorney’s testimony that appellant had soughtto plead guilty in order to expedite sentencing); see also Commonwealth v. Ferri, 410Pa. Super. 67, 75, 599 A.2d 208, 212 (1991) (finding that admission of former counsel’stestimony was proper, where privileged communications were disclosed only to extentnecessary to authenticate and establish chain of custody of non-privileged physicalevidence), appeal denied, 534 Pa. 652, 627 A.2d 730 (1993), cert. denied, 510 U.S.1164, 114 S. Ct. 1189 (1994).

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So much, Chmiel concedes. He contends, however, that Attorney Kennedy

disclosed far more of his conversations with Chmiel than was necessary to rebut the

allegations of ineffectiveness. Chmiel bases his claim on Rule 1.6(c)(3) of the

Pennsylvania Rules of Professional Conduct, which provides that a lawyer whose

representation of a client has been challenged “may reveal [confidential] information to

the extent that the lawyer reasonably believes necessary” in order to respond to such a

challenge. According to Chmiel, Attorney Kennedy could reasonably have responded to

the allegations against him without disclosing that his client had given him three

contradictory versions of the events in question.

Chmiel’s argument is meritless. In response to the assertion that he had been

ineffective in not calling Chmiel to the stand, it was appropriate for Attorney Kennedy to

state his view that, because his client had told him more than one version of the events

at issue, he risked suborning perjury if he allowed his client to testify. It was also

appropriate for Attorney Kennedy to respond to the allegation concerning alibi witnesses

by explaining that his client had rendered the search for such witnesses more difficult by

giving more than one version of his whereabouts on the night in question. While

Attorney Kennedy might have been able to explain his dilemma using fewer details, the

disclosures that did occur fell within the scope of the waiver.

Moreover, even if we were to assume for the sake of argument that Chmiel is

correct, his claim would have established, at most, a basis for disciplinary proceedings

against Attorney Kennedy. The rules that govern the ethical obligations of the legal

profession (presently, the Rules of Professional Conduct) do not constitute substantive

law. In re Search Warrant B-21778, 513 Pa. 429, 441 n.5, 521 A.2d 422, 428 n.5

(1987); Estate of Pedrick, 505 Pa. 530, 535, 482 A.2d 215, 217 (1984); see also Rost v.

State Board of Psychology, 659 A.2d 626 (Pa. Cmwlth.) (addressing, in a disciplinary

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proceeding, a psychologist’s breach of the duty of confidentiality), appeal denied, 543

Pa. 699, 670 A.2d 145 (1995). In addition, the discussion entitled “Scope” which

precedes the Rules themselves states that “these Rules are not intended to govern or

affect judicial application of either the attorney-client or work product privilege.”

Accordingly, this claim is without merit.

Next, Chmiel challenges the trial court’s finding that “the Defendant, by filing a

PCHA petition in his first trial and including as grounds his prior counsel’s failure to

obtain alibi witnesses, opened the door for Attorney Kennedy’s testimony . . . .”

According to Chmiel, he filed a post-trial motion alleging ineffectiveness, not a PCHA

petition, and therefore the trial court’s decision to designate the evidentiary hearing as a

PCHA hearing was error. The gravamen of Chmiel’s argument, apparently, is that it is

the PCHA designation that determines whether counsel can reveal the confidences of a

former client.

This argument is specious. Claims of ineffective assistance of counsel do not

arise solely in the context of post-conviction proceedings. Such claims are often raised

on direct appeal, and it cannot seriously be argued that the privilege would be waived in

the former context but not in the latter. Regardless of whether the trial court’s choice of

procedure was “extremely unorthodox” and “unwarranted,” as Chmiel suggests, the fact

remains that Chmiel challenged the competence of his former counsel. It is that fact,

and not the characterization of the proceeding, which “opened the door” to Attorney

Kennedy’s testimony.

III. The Commonwealth’s Use at Trial of Prior Counsel’s Testimony

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Having determined that Attorney Kennedy was properly allowed to testify as to

otherwise privileged communications from Chmiel in order to rebut Chmiel’s allegations

of ineffectiveness, we turn to the fundamental issue in this case: Was it error for the

trial court to allow the Commonwealth to introduce such testimony into Chmiel’s second

trial? This is a question of first impression not only in this Commonwealth, but,

apparently, in almost all other jurisdictions as well.3

Before addressing Chmiel’s arguments on this issue, we must determine the use

that was made of the challenged testimony. As noted earlier, the Commonwealth

asserted prior to trial that it would introduce the testimony for the purpose of impeaching

Chmiel if he chose to testify, and in fact the Commonwealth did utilize the testimony for

that purpose. Chmiel argues, however, that the testimony was effectively offered as

substantive evidence since the trial court did not give any limiting instruction to the jury.4

3 The Court of Appeals for the Third District of California considered the issue generallyin State v. Dennis, 177 Cal. App. 3d 863, 223 Cal. Rptr. 236 (1986). In that case, thecourt acknowledged that when a defendant asks the trial court to set aside a jury verdicton the ground of ineffectiveness of counsel, he waives the attorney-client privilege as tothe matters that he places in issue. Nevertheless, the court observed, “the informationthat defendant will be required to disclose in support of a new trial motion mayconceivably lighten the burden which the prosecution bears in bringing about aconviction upon a new trial and therefore defendant’s right against self incrimination isimplicated.” Id. at 874, 223 Cal. Rptr. at 243. Thus, the court reasoned that to require adefendant to demonstrate prior counsel’s ineffectiveness on the record was to riskimposing on the defendant “a compulsive sanction against the exercise of the selfincrimination privilege.” Id. at 874, 223 Cal. Rptr. at 243-44. In order to relievedefendants of such an untenable choice, the court held that a defendant “must begranted use immunity for disclosures he may make in support of a motion for a new trialon grounds of ineffectiveness of trial counsel.” Id. at 876, 223 Cal. Rptr. at 245.

4 Defense counsel did not ask for a limiting instruction, either at the time of cross-examination or prior to the court’s charge to the jury. As this is a capital case, weconclude that the issue has not been waived. See Commonwealth v. Zettlemoyer, 500Pa. 16, 26 n.3, 454 A.2d 937, 942 n.3 (1982), cert. denied, 461 U.S. 970, 103 S. Ct.2444 (1983). Moreover, as will be discussed, defense counsel did object to the“consciousness of guilt” instruction that was given by the court on this issue.

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Review of the jury charge reveals that the trial court gave two pertinent

instructions to the jury. As part of its general instructions on credibility, the court stated

the following:

According to the evidence some of the witnesses made a statement onone occasion which appeared to conflict or contradict their testimony givenat this trial. That would be when they were on the stand and they said onething while testifying, then they were asked about something they saidregarding the same thing on a prior occasion. You may consider theevidence of this other statement in deciding whether or not to believe thiswitness. You may, if you choose, regard this evidence as proof of thetruth of anything that the witness said in the earlier statement.

Later in the charge, after having explained to the jury that circumstantial evidence alone

may be sufficient to prove the defendant’s guilt, the court said the following:

We also want to caution you that there was evidence tending to show thatthe Defendant made false and contradictory statements. They weretestified to by various witnesses in this case. So if you believe thisevidence, you may consider it as tending to prove the Defendant’sconsciousness of guilt. You are not required to do so. You shouldconsider and weigh this evidence along with all the other evidence in thecase.

Obviously one example of Chmiel’s “false and contradictory statements” was the

varying accounts of his whereabouts contained in the testimony of Attorney Kennedy,

which testimony was read to the jury by the prosecutor during his cross-examination of

Chmiel.5 Thus, the jury could fairly have found, based on the court’s instruction, that

5 In requesting the second of the quoted instructions, the Commonwealth explained that“what we are talking about there is the three versions that [Chmiel] gave with respect toMr. Kennedy.” The trial court suggested that the instruction would apply to thedefendant’s statements to his brother Martin. Over defense counsel’s vigorousobjection, the trial court agreed to include the Commonwealth’s point for charge in itsinstructions.

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such testimony constituted evidence tending to prove Chmiel’s consciousness of guilt--

in other words, substantive evidence. In light of this instruction, we do not agree with

the trial court that Attorney Kennedy’s testimony was used only for the purpose of

impeachment.

As the Commonwealth acknowledges, the evidence in question involved two

declarants, Chmiel and Kennedy, and was therefore hearsay within hearsay, or double

hearsay. If double hearsay is to be admissible, the reliability and trustworthiness of

each declarant must be independently established. Commonwealth v. Scott, 503 Pa.

624, 630, 470 A.2d 91, 94 (1983). This requirement is satisfied where each statement

comes within an exception to the hearsay rule. See Commonwealth v. Galloway, 302

Pa. Super. 145, 158-59, 448 A.2d 568, 575 (1982); PACKEL AND POULIN, PENNSYLVANIA

EVIDENCE §806 (1987) [hereinafter PENNSYLVANIA EVIDENCE].

In the present case, the Commonwealth maintains that Attorney Kennedy’s

testimony comes within the former testimony exception to the hearsay rule and that

Chmiel’s statements to Attorney Kennedy constitute party admissions, another hearsay

exception. Although he does not directly address the hearsay rule, Chmiel indirectly

challenges both of these assertions.

A. Admissibility of Former Testimony Under 42 Pa.C.S. §5917

We consider, first, Chmiel’s claim that the Commonwealth’s use of Attorney

Kennedy’s testimony violated Section 5917 of the Judicial Code, which reads as follows:

Whenever any person has been examined as a witness, either for theCommonwealth or for the defense, in any criminal proceeding conductedin or before a court of record, and the defendant has been present andhas had an opportunity to examine or cross-examine, if such witness

[J-92-98] - 19 -

afterwards dies, or is out of the jurisdiction so that he cannot be effectivelyserved with a subpoena, or if he cannot be found, or if he becomesincompetent to testify for any legally sufficient reason properly proven,notes of his examination shall be competent evidence upon a subsequenttrial of the same criminal issue. For the purpose of contradicting a witnessthe testimony given by him in another or in a former proceeding may beorally proved.

42 Pa.C.S. §5917. As noted earlier, Section 5917 codifies, in the criminal context, the

former testimony exception to the hearsay rule. See PENNSYLVANIA EVIDENCE §804.1.

This Court has held that in order for a witness’s prior testimony to be admissible

pursuant to Section 5917, the defendant against whom the testimony is to be admitted

at a subsequent proceeding must have been afforded a full and fair opportunity to

cross-examine the witness at the first proceeding. Commonwealth v. Thompson, 538

Pa. 297, 311, 648 A.2d 315, 322 (1994); Commonwealth v. Bazemore, 531 Pa. at 588,

614 A.2d at 687. This requires, essentially, that

the issue remain the “same” in both proceedings . . . . This requirement isin accord with the common law rule that “the issues in the first proceedingand hence the purpose for which the testimony was there offered, musthave been such that the present opponent (or some person in likeinterest) had an adequate motive for testing on cross-examination thecredibility of the testimony now offered.” MCCORMICK, EVIDENCE §234 at491 (1954); 5 WIGMORE, §§1386-88 (3rd ed. 1940).

Commonwealth v. Velasquez, 449 Pa. 599, 601 n.3, 296 A.2d 768, 770 n.3 (1972)

(additional citations deleted). Addressing Section 5917’s predecessor statute, the Act of

May 23, 1887, P.L. 158, §3, 19 P.S. §582, the wording of which was in pertinent part

identical to that of Section 5917, this Court interpreted the statute as requiring that the

[J-92-98] - 20 -

issues at both proceedings be “substantially the same.” Velasquez, 449 Pa. at 601,

296 A.2d at 770. 6

Chmiel does not dispute that Attorney Kennedy was examined as a witness in a

criminal proceeding before a court of record, or that he has since died. He contends,

rather, that the ineffectiveness hearing did not address the same criminal issue as his

subsequent trial on homicide charges. According to Chmiel, the issue at the evidentiary

hearing was Attorney Kennedy’s effectiveness at the first trial, and such issue does not

imply the commission of a crime or the threat of criminal punishment; the issue at the

second trial, in contrast, was Chmiel’s guilt or innocence of three charges of murder in

the first degree. Therefore, Chmiel argues, it cannot be said that the hearing afforded

him a full and fair opportunity to cross-examine Attorney Kennedy on the issue that was

fundamental to his second trial. We disagree.

The issue at the second trial, as at the first, was Chmiel’s guilt or innocence of

three charges of first-degree murder. The issue at the evidentiary hearing was Attorney

Kennedy’s effectiveness in defending Chmiel against those charges at the first trial.

6 See id. (holding, in case of defendant who obtained new trial on murder charge afterhaving pled guilty, that testimony of unavailable witness from degree of guilt hearingwas admissible at trial because in both proceedings the issue was whether defendanthad acted with premeditation and without provocation); Commonwealth v. Taylor, 299Pa. Super. 113, 122-23, 445 A.2d 174, 178-79 (1982) (holding that testimony ofunavailable witness from witness’s own trial was admissible at defendant’s trial, as bothhad asserted entrapment defense involving same informant). Cf. Commonwealth v.Munchinski, 401 Pa. Super. 300, 316, 585 A.2d 471, 479 (1990) (holding that testimonyfrom trial of unavailable witness and former co-defendant was not admissible atdefendant’s trial, as witness had presented insanity defense and Commonwealth’sopportunity to cross-examine was limited to that issue alone), appeal denied, 529 Pa.618, 600 A.2d 535 (1991); Commonwealth v. DeMarco, 332 Pa. Super. 315, 332, 481A.2d 632, 640 (1984) (holding that transcript from Canadian extradition hearing was notadmissible at the defendant’s trial in Pennsylvania on criminal charges, despiteadversarial nature of extradition hearing, because interests of Canadian authorities athearing were substantially different from those of Commonwealth at trial).

[J-92-98] - 21 -

Central to both issues was Chmiel’s credibility: Was he to be believed when he testified

concerning his whereabouts on the night in question? As Attorney Kennedy’s testimony

on this issue was decidedly negative, Chmiel’s motive for cross-examining Attorney

Kennedy is readily apparent.

The fact that Attorney Kennedy would not face criminal punishment if found to be

ineffective is, as to this issue, irrelevant. It was not the significance of the hearing to

Attorney Kennedy that mattered, but the significance of the hearing to Chmiel. If Chmiel

succeeded in demonstrating prior counsel’s ineffectiveness with respect to the

investigation of alibi witnesses, his own desire to take the stand, or any of the other

asserted grounds, he would obtain a new trial (as, indeed, he did on the ground of

failure to request an accomplice instruction). A new trial would afford him not only a

second chance for acquittal but also, failing that, a second chance at a sentence of life

imprisonment rather than death. It was therefore in Chmiel’s interest to impeach or

disprove Attorney Kennedy’s testimony concerning each and every allegation of

ineffectiveness. Indeed, a more compelling motive for effective cross-examination is

difficult to imagine. Therefore, as Chmiel had both the motive and the opportunity to

cross-examine Attorney Kennedy at the evidentiary hearing, Section 5917 did not bar

the admission of Attorney Kennedy’s testimony at Chmiel’s second trial.

Chmiel cites this Court’s decision in Commonwealth v. Mangini, 493 Pa. 203, 425

A.2d 734 (1981), for the proposition that “countervailing principles” may preclude the

admission of prior recorded testimony even though such testimony was otherwise

admissible under Section 5917. The issue in Mangini was whether the testimony of a

currently unavailable witness, given at the defendant’s first trial, could be introduced at

the defendant’s second trial, where the second trial had been made necessary by prior

counsel’s ineffectiveness in failing either to request a competency hearing for the

[J-92-98] - 22 -

witness in question or to object to his competency on the record. This Court held that

the testimony could not be so utilized, as “the use in the present trial of the very

testimony which has been indelibly stamped with prior counsel’s ineffectiveness is

offensive to our sense of justice and the notion of fair play.” Id. at 210, 425 A.2d at 738.

Chmiel asserts that the same result is required here. In Mangini, however, this

Court cautioned that “our holding today is not a per se rule requiring exclusion of any

testimony from a prior trial wherein trial counsel had been ineffective.” Id. at 212, 425

A.2d at 739. The Court explained that, to the contrary, the resolution of a similar claim

in a different case would require an examination of “[a]ll of the factual variables . . . to

determine if the ineffectiveness so tainted the testimony sought to be introduced as to

affect its reliability or to otherwise render its subsequent use unfair.” Id. at 212, 425

A.2d at 738 (footnote omitted).

In the present case, prior counsel was found to have been ineffective at the first

trial only because he did not request a particular jury instruction. Counsel’s failure in

that regard did not taint the evidence offered at the first trial. In any event, it was not

testimony from the first trial that was introduced at the second trial, but prior counsel’s

testimony from the evidentiary hearing. Although prior counsel’s ineffectiveness made

such hearing necessary, it did not taint the testimony offered there.7 Thus, neither case

law nor logic warrants the extension of Mangini to the present situation.

B. Admissibility of Former Testimony under Lively

7 The fact that the evidentiary hearing was necessitated by prior counsel’sineffectiveness is nevertheless relevant to our disposition in another respect. SeeSection III.C, infra.

[J-92-98] - 23 -

Next, Chmiel argues that, under this Court’s decision in Commonwealth v. Lively,

530 Pa. 464, 610 A.2d 7 (1992), Attorney Kennedy’s ineffectiveness hearing testimony

was inadmissible at trial because it was based on the attorney’s notes of his

conversations with Chmiel. We disagree.

The decision in Lively followed from the lead case of Commonwealth v. Brady,

510 Pa. 123, 507 A.2d 66 (1986), which held that prior inconsistent statements of a non-

party witness may be used as substantive evidence where the declarant is a witness at

trial and available for cross-examination. While acknowledging the traditional view that

such statements were hearsay if offered for truth and, as hearsay, were too unreliable to

be admitted as substantive evidence, this Court nevertheless concluded that since the

witness in question would testify in court, where she would be under oath and subject to

cross-examination, the acknowledged dangers of hearsay were largely nonexistent. Id.

at 128-29, 507 A.2d at 69.

Lively limited the rule of Brady by holding that a prior inconsistent statement of a

non-party witness may be used as substantive evidence only if it was given under highly

reliable circumstances: 1) under oath at a formal legal proceeding; 2) reduced to a

writing signed and adopted by the declarant; or 3) recorded verbatim

contemporaneously with the making of the statement. Id. at 471, 610 A.2d at 8.

In the present case, Chmiel contends that Attorney Kennedy became a non-party

witness for purposes of the second trial. Chmiel argues that because he did not adopt

Attorney Kennedy’s notes in any fashion, and in fact denied making the statements

attributed to him by Attorney Kennedy, the notes themselves would be inadmissible.

Therefore, he asserts, Attorney Kennedy’s testimony should be inadmissible as well.

The principles of Brady and Lively are not relevant, however, unless the matter

at issue involves the prior inconsistent statement of a non-party witness. Here,

[J-92-98] - 24 -

however, Attorney Kennedy made no prior inconsistent statement; only his testimony

from the evidentiary hearing was utilized at Chmiel’s second trial. Therefore, Attorney

Kennedy cannot be the non-party witness for purposes of a Brady-Lively analysis.

Moreover, his recorded testimony, as noted earlier, was admissible under the former

testimony exception as codified in Section 5917.

Chmiel did make prior inconsistent statements, in the form of his statements to

Attorney Kennedy; and those statements were effectively allowed into evidence at his

second trial. Chmiel, however, was not a non-party witness. To the contrary, he was

the defendant, and his statements to Attorney Kennedy were admissible under the

hearsay exception for party admissions. Commonwealth v. Sherard, 456 Pa. 505, 508,

321 A.2d 372, 373 (1974); see also Galloway, 302 Pa. Super. at 158, 448 A.2d at 575.

[Party a]dmissions . . . are admissible because it is fair in an adversarysystem that a party’s prior statements be used against him if they areinconsistent with his position at trial. In addition, a party can hardlycomplain of his inability to cross-examine himself. A party can put himselfon the stand and explain or contradict his former statements.

PENNSYLVANIA EVIDENCE §805 (footnotes omitted). In sum, as the reliability concerns

underlying Brady and Lively are not present here, the Brady-Lively precedents pose no

barrier to the admissibility of Attorney Kennedy’s testimony.

C. Asserted Denial of Constitutional Rights

Chmiel argues that even if the Commonwealth’s use at trial of Attorney

Kennedy’s testimony surmounted the statutory and common law bars to admissibility, it

cannot overcome the hurdle of constitutionality. Among the constitutional rights violated

by the use of such testimony, Chmiel contends, was the right, guaranteed him by the

[J-92-98] - 25 -

Sixth Amendment to the United States Constitution8 and Article I, Section 99 of the

Pennsylvania Constitution, to confront the witnesses against him.

Although the hearsay rules and the federal Confrontation Clause are generally

designed to protect similar values, the overlap is not complete. California v. Green, 399

U.S. 149, 155, 90 S. Ct. 1930, 1933 (1970). The United States Supreme Court “has

emphasized that the Confrontation Clause reflects a preference for face-to-face

confrontation at trial, and that ‘a primary interest secured by [the provision] is the right of

cross-examination.’” Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537 (1980)

(quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965)).

In Roberts, the Supreme Court explained that “[t]he Confrontation Clause

operates in two separate ways to restrict the range of admissible hearsay.” Id. at 65,

100 S. Ct. at 2538. First, it establishes a “rule of necessity”: in the usual case, “the

prosecution must either produce, or demonstrate the unavailability of, the declarant

whose statement it wishes to use against the defendant.” Id. Second, once the

declarant is shown to be unavailable, the Clause requires that the declarant’s statement

be shown to bear adequate “indicia of reliability” if it is to be admitted into evidence. Id.

at 66, 100 S. Ct. at 2539.

Reliability can be inferred without more in a case where the evidence fallswithin a firmly rooted hearsay exception. In other cases, the evidencemust be excluded, at least absent a showing of particularized guaranteesof trustworthiness.

Id. (footnote omitted). 8 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted withthe witnesses against him . . . .”

9 “In all criminal prosecutions the accused hath a right . . . to meet the witnesses face toface . . . .”

[J-92-98] - 26 -

While it is thus within the realm of possibility that an otherwise admissible out-of-

court statement could run afoul of the defendant’s constitutional right to confrontation,

Chmiel has failed to demonstrate that this has occurred in the present case. The

witness in question was unavailable; the witness’s testimony met the requirements for

admissibility set forth in Section 5917 of the Judicial Code, including the requirement

that Chmiel be given a full and fair opportunity to cross-examine the witness; and

Chmiel’s statements to the witness came within the recognized hearsay exception for

party admissions. As Chmiel’s argument for inadmissibility under the federal

Confrontation Clause is not distinguishable from his argument for inadmissibility under

Section 5917, his reliance upon the former is without merit.

Chmiel also maintains, correctly, that this Court has interpreted the Confrontation

Clause of our state Constitution as being more stringent than its federal counterpart.

Commonwealth v. Louden, 536 Pa. 180, 187, 638 A.2d 953, 956-57 (1994);

Commonwealth v. Ludwig, 527 Pa. 472, 478, 594 A.2d 281, 283-84 (1991). He does

not assert that Section 5917 violates the state constitutional provision, however, but

only that the procedure at issue in this case did not meet the requirements of Section

5917. In Section III.A, supra, we have found that argument to be meritless. Moreover,

as this Court observed in Ludwig, “we have recognized exceptions to the constitutional

right to confrontation . . . only in those instances in which the accused has already had

the opportunity to confront the witnesses against him face to face.” Id. at 480, 594 A.2d

at 284. Chmiel had such an opportunity at the evidentiary hearing. Accordingly, this

issue requires no further consideration.

Chmiel also argues that the use of Attorney Kennedy’s testimony at his second

trial violated his Fifth Amendment right to be protected against compelled self-

[J-92-98] - 27 -

incrimination.10 He contends that through the compelled disclosure of the statements

that he had made in confidence to Attorney Kennedy, “Kennedy became Chmiel

incriminating himself.”

At first blush, Chmiel’s argument appears to be contradicted by case law. The

defendant in Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), chose to

testify at his first trial but to remain silent at his second trial. At the second trial, the

Commonwealth, over the defendant’s objection, was permitted to admit into evidence

certain portions of the defendant’s testimony at earlier proceedings, including the first

trial, to show that he had made conflicting statements and thus to imply consciousness

of guilt. This Court affirmed, explaining that

[t]he fact that [the defendant] exercised his right of silence during thesecond trial did not insulate him from the consequences of his earliertestimony. It has long been recognized that testimony from an earlier trialmay be introduced in the prosecution’s case against a defendantregardless of whether that defendant takes the stand or not in the secondproceeding.

Id. at 497, 447 A.2d at 256 (citations omitted). As the Superior Court had held in

Commonwealth v. House, 6 Pa. Super. 92 (1897),

[A defendant] cannot be compelled to give evidence against himself, but ifhe gives it voluntarily he cannot object to having it used against him. Hisconstitutional privilege, as far as that testimony is concerned, is waived,and cannot be reclaimed in any subsequent trial of the same indictment.

Id., 6 Pa. Super. at 104, quoted with approval in Boyle, 498 Pa. at 498, 447 A.2d at 256.

Of similar import, although involving a different privilege, is the case of

Commonwealth v. Santiago, 541 Pa. 188, 662 A.2d 610 (1995), cert. denied, 516 U.S.

10 “No person . . . shall be compelled in any criminal case to be a witness against himself. . . .”

[J-92-98] - 28 -

1053, 116 S. Ct. 722 (1996). The defendant in that case argued that the trial court had

erred in admitting psychiatric testimony, introduced in his first trial where insanity was

the defense, into his second trial, where he did not assert such a defense. Citing its

earlier decision in Boyle, this Court concluded that “because Appellant voluntarily

waived the psychiatrist-patient privilege, 42 Pa.C.S. §5944, by pursuing an insanity

defense in his first trial, he may not reclaim the privilege in a subsequent trial.” Id. at

197-98, 662 A.2d at 614 (footnote omitted).

These decisions imply that, absent other considerations, a right or privilege once

waived is always waived and that the defendant who waives a right or privilege cannot

thereafter object to the use that is made of the formerly privileged communications.

Although Chmiel did not waive his attorney-client privilege directly, he did so indirectly

for the purpose of demonstrating his prior counsel’s ineffectiveness. The

Commonwealth argues that the evidence that resulted from such waiver “no longer

retain[ed] its privileged character once it was disclosed in open court for third parties to

hear.”

Chmiel argues, however, that another, crucial consideration was present in this

case: his constitutional right to the assistance of counsel. He asserts that “it is

precisely because he chose to exercise his right to effective counsel by challenging his

former attorney’s performance that he ended up in a quagmire of repercussions.” One

such repercussion, he maintains, was the violation of his Fifth Amendment right not to

incriminate himself. “Does a defendant really have a right to effective assistance of

counsel,” he asks, “if, by challenging his attorney’s performance, he runs the risk of

having his confidences used against him at a second trial?”

In effect, Chmiel posits that, if the trial court’s ruling is affirmed, a defendant who

was represented by ineffective counsel will face a constitutionally impermissible choice:

[J-92-98] - 29 -

he can challenge the effectiveness of prior counsel, at the risk that the confidences

which will be disclosed in the process will be admitted against him at a second trial; or

he can ensure that his statements to prior counsel remain confidential, at the cost of

forgoing any possibility of a new trial at which he would be effectively represented.

The importance of the right to counsel requires that we give careful consideration

to Chmiel’s argument. For at least thirty-five years the right to counsel has been

recognized as a fundamental right, one that is essential to the goal of ensuring that

every criminal defendant receives a fair trial before an impartial tribunal. See Gideon v.

Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792, 796-97 (1963). Moreover, “[i]t is

axiomatic that a criminal defendant is constitutionally entitled to the effective assistance

of counsel.” Commonwealth v. Kale, 331 Pa. Super. 155, 161, 480 A.2d 291, 294

(1984) (emphasis added) (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708,

1716 (1980)). It is a matter of grave concern, therefore, if a defendant in Chmiel’s

situation chooses not to seek the effective representation to which he is entitled

because he fears that the price of success will be his compelled self-incrimination,

through the testimony of prior counsel, upon retrial.

The rationale underlying the attorney-client privilege suggests that there is

reason for such concern. The purpose of the privilege is not to further the fact-finding

process, but to foster a confidence between attorney and client that will lead to a

trusting and open dialogue. Sims, 513 Pa. at 374, 521 A.2d at 394; Maguigan, 511 Pa.

at 125, 511 A.2d at 1334. As explained by Professor Mechem in his treatise on the law

of agency:

The purposes and necessities of the relation between a client and hisattorney require, in many cases, on the part of the client, the fullest andfreest disclosures to the attorney of the client’s objects, motives and acts.This disclosure is made in the strictest confidence, relying upon the

[J-92-98] - 30 -

attorney’s honor and fidelity. To permit the attorney to reveal to otherswhat is so disclosed, would be not only a gross violation of a sacred trustupon his part, but it would utterly destroy and prevent the usefulness andbenefits to be derived from professional assistance. Based uponconsiderations of public policy, therefore, the law wisely declares that allconfidential communications and disclosures, made by a client to his legaladviser for the purpose of obtaining his professional aid or advice, shall bestrictly privileged;--that the attorney shall not be permitted, without theconsent of his client,--and much less will he be compelled--to reveal ordisclose communications made to him under such circumstances.

Sims, 513 Pa. at 373-74, 521 A.2d at 394 (quoting 2 MECHEM ON AGENCY §2297 (2d ed.

1914)); Maguigan, 511 Pa. at 124-25, 511 A.2d at 1333-34 (quoting same); Slater v.

Rimar, Inc., 462 Pa. 138, 148, 338 A.2d 584, 589 (1975) (quoting same).

It has been suggested that the reluctance of clients to disclose unfavorable

information to counsel is even more pronounced in the criminal field. “In criminal cases,

the difficulty of obtaining full disclosure from the accused is well known, and would

certainly become an absolute impossibility if the defendant knew that the lawyer could

be compelled to report what he had been told.” 1 MCCORMICK ON EVIDENCE §87 (4th ed.

1992). The critical importance of the attorney-client privilege to the administration of the

criminal justice system is indicated not only by its ancient lineage, but also by its

codification in statute. “[T]he existence of a statutory privilege is an indication that the

legislature acknowledges the significance of a particular interest and has chosen to

protect that interest.” Commonwealth v. Wilson, 529 Pa. 268, 282, 602 A.2d 1290,

1298, cert. denied, 504 U.S. 977, 112 S. Ct. 2952 (1992).

Given the concerns that mandate recognition of an attorney-client privilege, it is

not unrealistic to suggest that use of testimony of prior counsel as in this case would

have a chilling effect on defendants’ exercise of their right to the effective assistance of

counsel. Knowing of the possibility that his counsel may ultimately be required to

[J-92-98] - 31 -

testify against him,11 a defendant may decide that counsel cannot be trusted with the

most damaging information concerning his case; or he may decide not to challenge

counsel’s effectiveness, fearing that his ability to mount a successful defense at a

second trial has been fatally undermined by the admissibility of his communications to

prior counsel. The fundamental unfairness of requiring a defendant to choose either of

those options is illustrated by the present case: the situation that such a choice seeks

to avoid--the admission at a second trial of prior counsel’s evidentiary hearing

testimony--has occurred precisely because prior counsel was shown to have been

ineffective.

Arguably a defendant can avoid such an undesirable result by limiting his

disclosures to his attorney, or by raising only such ineffectiveness claims as will not lead

to the disclosure of incriminating statements. Such argument, in our view, presupposes

an unrealistic degree of foresight on the part of the defendant and unreasonably

restricts his ability to prepare an adequate defense.

Accordingly, we hold that the policy inherent in the legislative recognition and

judicial enforcement of the attorney-client privilege, as it implicates a defendant’s

exercise of the right to the effective assistance of counsel and to freedom from

compelled self-incrimination, restricts the use as well as the scope of permitted

disclosures. Just as an attorney may not respond to allegations of ineffectiveness by

disclosing client confidences unrelated to such allegations, so the client confidences

properly disclosed by an attorney at an ineffectiveness hearing may not be imported into

the client’s subsequent trial on criminal charges. The trial court’s decision to the

contrary in the present case was error.

11 By happenstance, this case presents a situation in which prior counsel, having died,was not available to testify at the defendant’s retrial. In the more usual scenario, priorcounsel will be available to testify in person against the defendant.

[J-92-98] - 32 -

Such error was not harmless unless the Commonwealth is able to prove beyond

a reasonable doubt that the error did not contribute to the verdict. Commonwealth v.

Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). On this record, the Commonwealth

cannot do so. Martin Chmiel testified that David Chmiel confessed to having committed

the murders; David testified that he did not commit the murders but that he believed that

Martin had done so. Although the record contained circumstantial evidence to support

Martin’s testimony, the credibility of the principal witnesses was nevertheless crucial.

The damaging effect of Attorney Kennedy’s testimony on the credibility of David Chmiel

is beyond dispute, and the admission of such testimony was therefore not harmless.

Our decision requires that we vacate the judgment of sentence imposed upon

David Chmiel and remand for a new trial. In doing so, we note that “there is little

difference as far as the Constitution is concerned between permitting prior inconsistent

statements to be used only for impeachment purposes, and permitting them to be used

for substantive purposes as well.” Green, 399 U.S. at 164, 90 S. Ct. at 1938 (citing

Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968)). Given the extremely

prejudicial nature of a defendant’s prior inconsistent statements as testified to by the

defendant’s former counsel, we conclude that to ask the jury to consider former

counsel’s testimony for the purpose of impeachment but not as substantive evidence

would be to ask the impossible. Accordingly, Attorney Kennedy’s testimony shall not be

utilized for any purpose at retrial.

The judgment of sentence is vacated and the case is remanded to the trial court

for further proceedings consistent with this Opinion.

Mr. Justice Castille files a dissenting opinion in which Madame Justice Newman

joins.